Vaping among teens is an epidemic, and California’s crackdown law is faltering.

Prop. 31 aimed to keep children from accessing addictive, dangerous e-cigarettes. It isn't working.

This article was originally written by Marianne Love for L.A. Daily News and can be found on their website here.

Vaping among teens is a national epidemic, and in an effort to reduce its impact on children, California voters approved Proposition 31 in 2022, banning the sale of flavored “e-cigarettes” packaged with kid-friendly images and given inviting names like watermelon, gummy bears and rainbow cotton candy.

But despite Prop. 31, watchdog organizations and other critics say the illegal products remain on tobacco retailer shelves and in warehouses, while China funnels unauthorized vapes through entry points including Mexico and the ports of Los Angeles and Long Beach.

Javier Palomarez, president and CEO of the United States Hispanic Business Council, says his organization has been working with California Attorney General Rob Bonta to engage officials in other states to ban kid-friendly e-cigarettes similar to California’s ban.

Palomarez sent a letter to Bonta outlining the growing problem of illegal vapes and urged him to act to prevent illegal Chinese-manufactured disposable e-cigarettes from flowing into California. “Bottom line, we need to ensure that California’s flavor-ban law is being rigorously enforced and there is clarity as to which disposable vapor products are illegal for the sake of our children,” the letter read.

Palomarez said in a recent interview with the Southern California News Group that his group has been working with Bonta to get a handle on enforcing voter-approved Prop. 31 in hopes of setting an example for the rest of the country.

“There are about 2.5 million of our children from middle school to high school — and I’m talking from age 12 to 18 — who consume these vapes,” Palomarez said, “and in fact, usage amongst our youth is up over 2,000 percent in the last couple years.”

“So, this is a real tragedy,” Palomarez said, “and is an obvious attack on our youth by manufacturers looking for a profit.”

Their effort seems especially timely, with vape manufacturers making headlines in California.

On Dec. 14, the U.S. Food and Drug Administration and U.S. Customs and Border Protection announced the seizure of about 1.4 million units of unauthorized e-cigarette products worth more than $18 million at a cargo examination area at LAX, according to the USDA website. The seizure included brands like Elf Bar, which the 2023 National Youth Tobacco Survey says is the most common brand used by youths, according to the USDA website.

“The FDA is committed to continuing to stem the flow of illegal e-cigarettes into the United States,” said FDA Commissioner Robert M. Califf, in a prepared statement. Califf added, “Unscrupulous companies try everything they can to bring unauthorized, youth-appealing tobacco products into the country.”

Also on Dec. 14, Bonta filed lawsuits against two California online retailers of e-cigarettes, Ejuicesteals and E-juice Vapor, Inc., alleging that they did not properly verify the ages of California consumers, which violates state and federal laws that protect youth and vulnerable populations from harmful, addictive tobacco products.

“I won’t stand by as online retailers of e-cigarettes continue to steer our young people toward e-cigarettes and tobacco use that harms their health,” Bonta said in a prepared statement.

A vape is an electric cigarette that looks like a highlighter pen and contains a small heating element that turns the liquid chemicals inside the slim device into a vapor. Users suck the vapor deep into their lungs, thus “vaping.” E-cigarettes contain addictive nicotine, can harm developing brain function in young people, and can lead to misuse of nicotine and other substances.

The number of different electronic cigarette devices sold in the U.S. has nearly tripled to more than 9,000 since 2020, driven almost entirely by a wave of unauthorized disposable vapes from China, according to tightly controlled sales data obtained by Associated Press.

The U.S. Department of Agriculture set a policy under then-President Donald Trump that removed flavored, cartridge-based e-cigarettes from store shelves, but it didn’t exclude another product — disposable vapes — prompting many teens to switch to newer, flavored disposable products.

“These exposures are concerning because a very small amount of concentrated nicotine solution could easily deliver a lethal dose to a young child,” said Henry Spiller, author of a 2018 study for the Center for Injury Research and Policy, and former director of the Central Ohio Poison Center.

In August, Bonta joined a multi-state coalition issuing a letter to the FDA that proposed ways to better address the youth vaping crisis. The bipartisan coalition of 33 attorneys general urged the FDA to adopt new regulations and stronger enforcement mechanisms to address the rise of flavored, disposable e-cigarettes among youth, and urged a federal ban on flavored e-cigarettes and similar products.

“Flavored disposable e-cigarettes have become the new driver of the youth vaping crisis, with manufacturers using flavors and attractive marketing to addict a new generation to nicotine,” Bonta said in a statement. “I urge the FDA to move swiftly to put a stop to the sale of these products before a new generation of teens starts vaping and smoking. The California Department of Justice is committed to protecting the health, quality of life, and future of California’s children.”

But critics of California’s role in the crisis say that Prop. 31 is not being enforced — and therein lies a challenge.

Millions of vapes remain on store shelves and in warehouses nationwide, according to the United States Hispanic Business Council. And because nearby states including Nevada and Arizona have less stringent laws, it’s easy to bring more vapes into the Golden State.

Palomarez said he believes California officials are doing what they can on many levels. He said California’s 2017 tobacco grant program allocating $170 million to local law enforcement, health agencies, schools and cities — to help get flavored vapes off the shelves — is relevant.

“To me (it means) the state gets it and Bonta gets it,” he added.

But Salem “Sam” Grair, a San Fernando Valley parent and local Sun Valley tobacco industry wholesaler, doesn’t appreciate the flavor ban in Proposition 31 because it is unenforceable.

“Where yesterday this product was legal and today it is illegal, but … kids still have access to it,” Grair said.  “It’s illegal in California, but it’s legal in Nevada and Arizona, so what kind of law is this? I feel like if you are going to make a law, please enforce it. If you can’t enforce a law, why make a law?”

Grair also grapples with how the ban appeals to youngsters and has helped to open the black market.

“As kids, we always wanted something we can’t have,” he said. “The point is, it becomes an evil, it becomes more popular, people are attracted. Kids want it because it’s illegal. Kids can get it direct from China, kids can get it direct from Europe, they can order from anywhere online. You know what kind of world we are in today, so the law defeats the purpose 100 percent in my opinion.”

David Reynosa, a former El Monte police chief who retired about a year and a half ago and now works in the private security industry, says the vape black market has been around for years and wasn’t created only because of Proposition 31.

He said vaping is the number one issue currently facing school officials.

“(Today) you can easily hide a vaping device,” Reynosa said. “Many don’t emit flavored smoke or any smoke at all. It’s not visible. It’s difficult to detect and easy to hide and easy to dispose of.”

He said that some contraband vape devices getting into the hands of young people are made in dirty backyards and in unregulated warehouses. According to Reynosa, they are sold below normal cost to retail stores, but marketed as coming from a regulated source.

“I saw that in El Monte there were thousands and thousands of these devices, upward to 25,000 devices in a garage, in these unsanitary conditions and packaged and sold,” Reynosa said of his time as police chief. “That’s easy to get out into the market, whether it’s used by someone under the age of 21″ or not. But he warns, “it’s more harmful to younger people who are still developing.”

The former chief blames a lack of code enforcement, violations of conditional use permits, and failure to enforce the law. He also says business licenses are being violated, but that goes under the radar.

“When one starts a business there are regulations they have to abide by,” Reynosa said. “Selling an item as flavored vape is in violation of their (business license). Anything we can do to regulate this industry that has the ability to harm young people is worth looking into and worth spending money on.”

As students returned to school this fall, vaping remained an unsolved challenge.

Some school districts, such as Glendale Unified School District, have installed silent alert devices in restrooms that send a message that vaping has been detected, according to Reynosa.

At California State University Northridge, a communication studies professor collaborated with a team of Cornell University researchers to develop and test out e-cigarette warnings with two populations: non-smoking youths and adult smokers.

CSUN professor Motasem Kalaji co-authored a paper in June 2023 in which he explored how the two groups perceived and responded to different e-cigarette warnings that focused on potential health risks. “I don’t think there’s such a thing as a message for all,” Kalaji said in a prepared statement. “Usually with health warning messages, you would need a rotation of messages. Each message is designed for different audiences and works on different audiences.”

In July, Barbara Ferrer, director of the Los Angeles County Department of Public Health, signed onto a letter written to the FDA’s Center for Tobacco Products, urging the federal agency to take quicker and more direct action to fight the widespread availability of illegally marketed e-cigarettes.